Law Society’s conduct in Goldberg v Ng

Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83 is exhaustively treated in this sister post.  The purpose of this post is to isolate some comments about the Law Society’s extraordinary conduct in the disciplinary complaint which is the subject of the case.  The Society interviewed the solicitor for several hours.  It requested but did not compel the production of a proof of evidence the solicitor had drafted for the benefit of his own lawyers in relation to his dispute with his former client Mr Ng, which he planned to make the subject of proceedings against Ng.  Ng got in first, however, with a professional conduct complaint to the Law Society.

The Society undertook not to provide the proof of evidence to the complainant, and reassured him that the legal professional privilege he enjoyed over it would be unaffected by his providing it to the Society.  Justice Toohey commented at 110 ‘Arguably, the Society should not have given the undertaking in carrying out its function of inquiring into the complaint made against Mr Goldberg.’

The Society did not follow its usual course of requiring a written response to the complaint.  It based its decision on the proof of evidence, but did not provide it or its contents, or even a summary, to the complainant.  It dismissed the complaint by the following letter:

‘I refer to previous correspondence and advise that the investigation of this complaint has been completed and the Society’s Complaints Committee has resolved to dismiss it on the grounds that it does not involve a question of professional misconduct or unsatisfactory professional conduct.

The reasons for this decision are as follows:-

1. As the matter is now presented the Committee was not satisfied that there was any evidence of professional misconduct or unsatisfactory professional conduct.

2. The complainant should pursue his own remedies as his solicitors have indicated.’

The plurality (Justices Deane, Dawson and Gaudron) commented at 90:

‘In circumstances where the summons and supporting affidavit, of which copies had been delivered to the Law Society, alleged a failure by Mr Goldberg to account for over $100,100 paid to him (through his wife as agent) as a solicitor on account of legal costs, it is difficult to understand what was meant by the assertion, in the above letter, that the complaint “does not involve a question of professional misconduct or unsatisfactory professional conduct”. Nor is it apparent what was meant by the statement that the Committee was not satisfied that there was any evidence of professional misconduct or unsatisfactory professional conduct “(a)s the matter is now presented”. Be that as it may, it is clear that the letter from the Law Society was intended to be seen, and was seen by the solicitors for Mr Ng, as a rejection of the complaint of misconduct against Mr Goldberg and as a denial, at least at that stage, of any entitlement by Mr Ng to payment from the Solicitors’ Fidelity Fund.’

Justice Toohey commented at 110:

‘The letter did not elaborate on the first reason.  Arguably, the Society did not afford natural justice to Mr Ng in dismissing the complaint without informing him of the material provided by Mr Goldberg and of the part (if any) it played in that dismissal. But these are not the questions raised by this appeal.’

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